Time for jury reasons 
Posted By Mirko Bagaric on March 12th, 2008
Relatives of the six teenagers killed when a car ploughed into them near Mildura in February 2006 are devastated that the driver of the car Thomas Graham Towle was found by a jury to be not guilty of six counts of culpable driving.
Although he was found guilty of less serious charges, a relative of one of the deceased stated “it just feels like our kids’ lives are not worth very much… I don’t feel like they’ve got justice.’
Did the jury make the right decision? Or was justice denied? Unfortunately we will never know because of an out-dated, irrational quirk in our system of justice.
You see juries in Australia are not required (and not permitted) to give the reasons for their verdict and in fact it is an offence to even ask jurors about their deliberations after the verdict has been delivered. The sacred cow status attached to jurors needs to stop.
There are good reasons for maintaining juries, but if we are going to continue relying on their collective wisdom they must be required to explain their decisions.
This silence of juries flies in the face of trends in all other areas of law and government decision making where there is a growing need for decision-makers to give reasons for their decisions. There is good reason for this. If an individual has their rights adversely affected by the operation of the law, they are entitled to know by what power this occurred and how this power applied to their personal situation.
The process of obtaining reasons enables people to understand why they have been treated in a certain manner and gives them a basis for challenging the decision in question. This is very important in a society where we are supposedly governed by the ‘rule of law’; not the whims of bureaucrats or groups of them.
It follows that the more important the right at stake happens to be, the higher is the imperative to give reasons. Well not in our system. The most important decision made in our legal system is guilt or innocence in relation to a serious crime. Paradoxically it is the only decision that we are not entitled to have explained to us. We can demand to know why our application to build a fence has been refused or why our welfare payments have been reduced by $5, but not why we might be locked up for 10 years or why an accused has been acquitted.
The underlying reason for this anomaly relates to distrust of jurors, who are assumed, at least implicitly, to be lacking in the higher intelligence and knowledge of human behavior in which lawyers are seemingly over-endowed. This contention appears to be flawed. The empirical evidence that has been conducted about jury deliberations in fact shows that jurors have a sound understanding of the law and approach their task in a reasoned manner. It seems that the rationality gene pool is not exhausted by lawyers.
There are of course dangers associated with this. Jury reasons might in fact show that the reasoning process employed by juries is often wrong and hence provide fertile grounds for appeal.
It may very well transpire that juries act irrationality and contrary to the law. They may in fact pay too much weight to their hunches or base their decisions on irrelevant considerations, such as sympathy or dislike of certain accused people. Worse still though, is not knowing how they reach their decisions There is too much at stake to continue to allow juries deliberations to continue to be lost in the black box of the jury room.
If juries are making sound decisions then accused people will derive some degree of comfort from the fact that they were dealt with fairly. If their decision making is wonky, however, then we can fix it at the appeal stage or by abolishing juries altogether.
In any event, wilful blindness towards such a fundamental part of our justice system cannot be tolerated in a supposedly fair and transparent system of law.
A version of this was published in the Herald Sun on 11 March 2008